ACTUARIAL CASE LAW REVIEW

Facts: The plaintiff was in a motor vehicle collision in 2001 as a passenger seated in the back seat of a vehicle. The plaintiff was travelling with her young son. After the collision, the plaintiff was taken by ambulance to the Ferncrest hospital. The plaintiff was treated in the hospital for a period of approximately three months. She was discharged in a wheelchair which she used for one month and she used crutches for a further period of two months. The plaintiff also suffered psychological damage as her son, who travelled with her, passed away as a result of the collision. She suffered hip, femur and ankle injuries and limps when she walks and struggles to sleep due to the pain. She suffered intense depression for the first three years after the untimely death of her son and dreamt about him frequently.

Claim: The plaintiff claims loss of income and general damages. The merits of the plaintiff’s claim were conceded by the Fund. The plaintiff duly applied in terms of Uniform Rule 38(2) that the evidence of the expert witnesses be admitted into evidence on affidavit and an order was so made.

Discussion: In relation to employment prospects, the occupational therapist stated that the plaintiff’s work as cashier fell in the light to medium work categories. Her work post-collision as supervisor at Pick and Pay fell within the light work category with high demands for walking and standing. Her current work at Scorbet as assistant manager falls within the light work category. The plaintiff is best suited for work that falls in the light work category. The neurosurgeon reported that the plaintiff can continue her current employment, but it will be at the expense of quite a degree of discomfort. The occupational therapist confirmed that the plaintiff is no longer an equal competitor. The plaintiff would benefit from occupational therapy, assistive devices, physiotherapy and biokinetics. The neurosurgeon confirmed that the anxiety and underlying mood disorder were as a result of the collision and notes the diagnoses of major depressive disorder. The psychiatrist reported that plaintiff’s condition causes mild, chronic psychosocial distress and has resulted in chronic, mild functional impairment.

Industrial psychologist and actuary: The industrial psychologist assessed the plaintiff nine and a half years post-accident and reported that the pain she is reporting is very likely permanent of nature. He confirmed concentration difficulties and forgetfulness experienced by the plaintiff. The plaintiff’s medical evidence indicates that she has been permanently compromised in terms of her post-accident capabilities. The plaintiff is rendered less competitive in the open labour market due to her physical injuries. The plaintiff’s condition will deteriorate with age and early retirement is foreseeable. He recommends that a higher post-morbid contingency be considered in terms of future loss of earnings. The actuary calculated the plaintiff’s total past loss of income at R1,312,688. Contingencies of 11% have been applied to this amount. The plaintiff’s total future loss of income is R1,008,085. Contingencies of 31% have been applied to this amount. The court agrees with the submission made by counsel that the application of 11% contingencies for past loss of income and 31% contingencies for future loss of income are fair.

Order: Loss of income is awarded of R2,321,000 and general damages of R800,000.

REID J

Facts: The plaintiff, Ms Sandla, is an adult woman residing at Msukeni Location. There was a motor vehicle collision in 2021 which resulted in the death of her biological brother, Mr Nyembezi (the deceased). Both her parents are deceased. She holds three tertiary qualifications. In 2017, she obtained a Higher Certificate in Broadcasting. She holds a Diploma in National Journalism which she completed in December 2021. In December 2022, she obtained an advanced Diploma in Journalism. She is unemployed. The mother passed on when she was only 13 years of age. Upon the passing of her parents, she became dependent upon her late brother who was the only surviving sibling. Her brother was responsible for her schooling and welfare and supported her. She delayed her tertiary studies for five years because of a lack of funds, due to her brother first needing to build a home. He had been employed by the police department. As a result of the death of her brother, she is experiencing financial difficulties as she is not employed. She had been unsuccessfully seeking employment.

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Claim: The plaintiff is suing the Fund for loss of support and the claim is based on an allegation that the deceased, during his lifetime, had a duty to support the plaintiff, and indeed, that he supported her. The Fund contends that the plaintiff has no locus standi to sue it as she was a sibling; further, it submits that the deceased had no duty to support the plaintiff; and it also contends that as the plaintiff at the time of the accident was 28 years of age, she had attained the age of maturity and therefore, even if the deceased had a duty of her support, by virtue of her age, that duty would have terminated with the result that the deceased no longer owed the plaintiff any duty of support.

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Discussion: During cross-examination, she confirmed that her brother died whilst she was doing her second tertiary qualification. On questioning by the court, the plaintiff confirmed that she was not nominated as a dependent to her late brother, although he was a police officer. She testified that she did not inherit from her late brother, nor filed any claim against his estate. According to her, the wife of the deceased inherited from the late brother. The late brother had surviving children. She confirmed that she also has her own child and that she is presently 31 years old. She further testified that her child is maintained by the father of her child with whom the child is primarily residing. On being questioned whether the brother, if he was alive, would still be maintaining her, she confirmed this. On a further question on whether she would take her late brother to the maintenance court if he failed to maintain her, she answered that she would not force her brother for maintenance. When asked to elaborate on her response, she confirmed that her late brother was not bound to maintain her.

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Findings: There is a duty of support that exists between siblings. The plaintiff does have locus standi to claim as a sibling to the deceased. In customary law also, brothers are expected to look after their sisters, irrespective of their age. However, in this case the deceased had no legal duty to support the plaintiff after she had attained the age of maturity and had obtained post-matric qualifications. The plaintiff was in a position to seek employment for herself. She was physically and mentally well. She could, on her own, find various ways upon which she could survive. The court also considers the fact that the RAF has paid for the claims in respect of the children and the wife of the deceased. The correct position of our law is that the duty to support siblings would normally not endure beyond the age of maturity. This does not mean that there cannot be exceptions. One of the exceptions would be a situation where the sibling would be physically and or mentally incapable of supporting him or herself. This is not such a case. There was no legal duty of support that existed between the plaintiff and the deceased.

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Order: The plaintiff’s action against the Fund is dismissed. Each party to pay its own costs.

NOTYESI AJ

Facts: Ms Moloi (appellant) instituted a claim against the Fund for damages arising out of injuries sustained in a motor vehicle collision in 2018. The merits were settled by the parties at 100% in favour of the appellant. The general damages were settled at R800,000. The court was only called upon to adjudicate the outstanding claim in respect of the loss of earnings. The appellants’ claim, as held by the court a quo, was not based on the physical injuries she sustained but was premised on her alleged emotional and cognitive problems, which are the sequelae of the injuries. The appellant submitted that the evidence of the industrial psychologist and the actuary established that she would not complete her degree in 2018 but only in 2021. The objective fact is that the appellant only entered the labor market in 2022. This according to the version of the appellant, constituted a loss in the potential earnings.

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Appeal: The court a quo granted an order allowing only a claim for past loss of earnings in the amount of R840,211 and costs, but dismissed the claim for future loss of earnings. The court a quo observed that Dr Fourie has not given sufficient weight to the fact that the plaintiff (now appellant) had obtained a degree some 10 months before and that she was a trainee at an auditing firm, while she was furthering her studies at Unisa. Nor had Dr Fourie, me Stanton and me Gibson bothered to interview the current employers of the plaintiff to gain information regarding her performance at the workplace. In addition, the plaintiff attended the hearing in court, and no scarring or facial injuries could be observed by the court where she sat some 7 to 8 meters from the bench.

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Discussion: Dr Stanton, a clinical psychologist assessed the appellant. According to her, the objective of the assessment was to determine the emotional and overall functioning of the plaintiff before the accident and also the impact of the accident on her current functionality. She conceded during the cross-examination that her assessment was about four years before she gave testimony in court. Her answers in cross-examination (see para [11]) illustrate that the report of Dr Stanton was outdated. In her version, the condition of the appellant may have improved in later years. Assessment was thus imperative at least at the time when she had taken new employment. At the time of the hearing of the matter, her current emotional and cognitive state was unknown. The court a quo correctly held that the plaintiff’s present emotional and cognitive state was of vital importance in the adjudication of the loss of earnings. Dr Fourie took into account the outdated report of Dr Stanton and also chose not to seek the collateral information from the current employers of the appellant in order to assess the current emotional and cognitive state of the appellant, which was crucial to her case, as the claim is based on an alleged psychological state.

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Findings: It is submitted that the reports of the experts were admitted into evidence and were unchallenged. It appears that counsel for the plaintiff seems to argue that in the absence of any contrary evidence, such reports must be accepted as they are. It cannot be correct. The cross-examination was directed to showing that the reports, though they might have held truthfulness in them, were not without criticism. The fact is that they do not take into account the changed circumstances of the appellant as, according to her experts, her circumstances may have changed. The reports do not talk to the present circumstances of the appellant and for this reason they do not provide reliable current evidence to sustain a conclusion that the alleged injuries detrimentally affected her future career. She chose not to testify as to her current difficulties or challenges, if any, in her current employment. Despite the delay in entering the labour market, there is simply no evidence before the court to back the allegation that the injury sustained would prevent the plaintiff from reaching her peak of D2 on the Paterson scale at the age of 45. She has accordingly not convinced the court of her loss of earnings. The court a quo was correct in dismissing the claim for future loss of income.

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Order: The appeal is dismissed. There is no order of costs of the appeal.

MOLITSOANE J (MHLAMBI J and MTHIMUNYE AJ concurring)